Judge Mitchell L. Beckloff, Case 22STCP03597 2023-01-13 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP03597, Date: 2023-01-13 Tentative Ruling

Petitioner, Baker Commodities, Inc., moves to augment the administrative record. Respondent, South Coast Air Quality District (District), opposes the motion.

Petitioner also moves for an order staying the administrative decision in this matter. The District opposes the motion.

Augmentation of the administrative record is strictly controlled by Code of Civil Procedure section 1094.5, subdivision (e). (Pomona Valley Hospital Medical Center v. Superior Court (Bressman) (1997) 55 Cal.App.4th 93, 101.) Code of Civil Procedure section 1094.5, subdivision (e) provides:

“Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, [1] could not have been produced or [2] that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.”

The burden to make either of these showings lies with the proponent of the additional evidence. (Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174, 1180-1181.)

Relevant evidence is “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)

Petitioner seeks to augment the administrative record to include the following records:

Petitioner requests Exhibit Y be included in the administrative record. Exhibit Y is a screenshot of an online dialogue (text chat) between Dwyer and Inspector Harris.

Petitioner argues Exhibit Y should be included in the administrative record pursuant to Health and Safety Code section 40864, subdivision (c) which provides:

(c) The complete record includes the pleadings, all notices and orders issued by the hearing board, any proposed decision by the hearing board, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence, and any other papers in the case.” (Emphasis added.)

Petitioner claims during the remote online administrative hearing,[1] Inspector Harris appeared to be viewing multiple computer screens while testifying. (Ferguson Decl., ¶ 4.) According to Petitioner, after almost each cross-examination question asked by Petitioner’s counsel, Inspector Harris paused and looked over at other computer screens within his view that he was not using for the hearing. (Ferguson Decl., ¶ 4.)

At some point, Dwyer publicly shared his computer screen during the broadcast of the administrative hearing. (183 AR 3301-3305.) Dwyer’s screen showed an active text chat with Inspector Harris while Inspector Harris testified. (183 AR 3301-3305.)

One of Petitioner’s witnesses, Jimmy Andreoli II, took a screen shot of Dwyer’s publicly shared computer screen. Petitioner thereafter requested Andreoli’s screen shot, identified as Exhibit Y, be admitted into evidence. Petitioner sought to introduce the screen shot into evidence to assist with Inspector Harris’ cross-examination. (Taber Decl., ¶¶ 8- 9, Ex. 3.) The District objected to the admission of Exhibit Y based on attorney-client privilege. (Taber Decl., ¶ 10, Ex. 4; Dwyer Decl., ¶¶ 2-3.)

Following argument on the admissibility of Exhibit Y, the Hearing Board sustained the District’s objection. The Hearing Board did so citing the District’s claim of privilege. (Taber Decl., ¶¶ 11 & 12, Ex. 5.)

In support of the motion to augment, Petitioner argues Exhibit Y is relevant to the credibility of Inspector Harris’ testimony. Petitioner suggests Exhibit Y demonstrates Dwyer improperly coached Harris. Petitioner states:

“Attempting to communicate with a witness who is in the midst of testifying is, at best, highly improper. (See, e.g., Hayes v. SkyWest Airlines, Inc. (10th Cir. 2019) 789 Fed.Appx. 701, 704–705.) ‘It requires no legal training or background to understand that attempting to communicate with a witness who is then testifying on the stand, with the express intent to direct her not to testify, is highly improper, if not criminal.’ (Id.) At worse, inducing a witness to testify falsely is punishable as subornation of perjury. (Pen. Code, § 127.)”

Finally, Petitioner argues Exhibit Y is properly part of the expansive definition of record under Health and Safety Code section 40864, subdivision (c). Petitioner explains the text chat constitutes notes Inspector Harris relied upon to testify—notes Petitioner should have been permitted to use to question Inspector Harris.

First, the credibility of witnesses is not a fair hearing issue under Code of Civil Procedure section 1094.5.

In administrative mandamus, witness testimony—and the credibility thereof—informs on evidentiary issues—whether the evidence supports the findings and whether the findings support the decision. (Code Civ. Proc., § 1094.5, subd. (b).) That inquiry turns on the record considered by the hearing board. The hearing board did not consider Exhibit Y. Therefore, Exhibit Y cannot inform on whether the evidence supports the findings and/or the findings support the decision. In administrative mandamus, the court cannot use evidence not considered by the hearing board to find the evidence does not support the findings or the findings do not support the decision.

For purposes of administrative mandamus, the necessity of the content of Exhibit Y escapes the court. Nothing precludes Petitioner from arguing the fact of the communication between Dwyer and Inspector Harris so long as the argument is tethered to a claim in administrative mandamus.[2]

Further, while Petitioner suggests this type of conduct is “grounds for suspending law licenses, vacating judgments, and granting mistrials.” (Mot. 10:24-26.) Petitioner does not show how—in this administrative context—such sanctions are applicable here. Petitioner also does not demonstrate how the content of Exhibit Y informs, if at all, on such sanctions.[3]

The District persuasively argues privileged documents are not included as part of the record as defined by statute. That is, the attorney-client privilege prevails over Health and Safety Code section 40864, subdivision (c).

The court finds California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217 instructive. Admittedly, the case involved California Environmental Quality Act claims; nonetheless, the Court explained:

“[Public Resource Code] Section 21167.6 is not an abrogation of the attorney-client privilege or work product privilege. A new statute is not construed as an ‘implied repeal’ unless it is clear that the later enactment is intended to supersede the existing law. This requires a compelling showing of unavoidable conflict with the earlier law. (See, e.g., Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 378-379, . . . [the Public Records Act does not ‘by implication’ abrogate the attorney-client privilege as to the transmission of a written legal opinion from counsel to the local entity]; California Correctional Peace Officers Assn. v. Department of Corrections (1999) 72 Cal.App.4th 1331, 1339, . . . .) There is no such showing here. Privilege is a general background limitation to disclosure requirements. Thus, enactment of a specific disclosure requirement that makes no mention of privilege, without more, is at best, ambiguous concerning intent to override privilege. Ambiguity does not present an unavoidable conflict with the preexisting privilege law.” (Id. at 1221.)

Both Code of Civil Procedure section 1094.5, subdivision (e) and Health and Safety Code section 40864, subdivision (c)—like Public Resource Code section 21167.6—make no mention of attorney-client privileged records. Thus, the general language in the statutes concerning the record in administrative mandamus do not require the disclosure of attorney-client privileged documents as part of the administrative record.

Thus, the court finds no basis to augment the record with the content of Exhibit Y for this proceeding.

Petitioner also seeks to include the “entire chat” that was apparently ongoing during the administrative proceeding. More specifically, Petitioner requests the complete and entire chat of five individuals, including Dwyer, with Inspector Harris through the three days of the administrative proceeding be produced and included in the record. (Taber Decl., ¶¶ 8 & 9, Ex. 3.)

According to Petitioner, the District refused to produce the “entire chat” and the Hearing Board declined to demand a copy of the entire chat to include it in the administrative record. (Taber Decl., ¶¶ 9, 11, & 12, Ex. 5.) Petitioner argues the District improperly withheld the record from Petitioner and the Hearing Board. As such, Petitioner requests—in addition to the augmentation—the court order the District to produce the entire chat so that the Hearing Board may include it in the administrative record.

The court’s discussion about the content of Exhibit Y is equally applicable here.

Importantly, there is an additional reason to exclude the material from the administrative record. The Hearing Board never considered or was presented with the “entire chat.” Thus, the Hearing Board could not have relied upon the material for purposes of its decision. The material therefore is not part of the administrative record. (Health & Saf. Code § 40864, subd. (c)].)

Petitioner requests the court order the record be augmented to include the visual recordings with the photographs redacted (with sealed portions shall be produced to the court) and with the visual images of Exhibit Y restored.

Petitioner argues “[t]he visual recording is essential to evaluate the factors that are considered in determining the Inspector's veracity. A witness' demeanor, character of the testimony, and the attitude toward the action in which the witness testifies or toward the giving of testimony cannot be evaluated without the visual and audio part of the [administrative record].” (Mot., 14:26-15:2.)

First, based on the court’s ruling considering Exhibit Y, any visual recording would not include Exhibit Y.

As noted by the District, there is no legal authority requiring the court to receive a video recording of the hearing to consider witness credibility.

Under Health and Safety Code section 40864, subdivision (c), the record is to include “the pleadings, all notices and orders issued by the hearing board, any proposed decision by the hearing board, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence, and any other papers in the case.”

This statute does not specifically include hearing videos. Further, the hearing itself and its video recording are not “evidence” presented to the Hearing Board.

The District acknowledges cases have provided an expanded definition of “writings.” (See Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 717)[4] The court notes Health and Safety Code section 40864, subdivision (c) references “papers.” Nonetheless, there is a transcript of the hearing; the visual recording is not necessary to provide the court with the foundation for the Hearing Board’s decision. (See ibid. [audio recordings where no transcript].)

Petitioner’s request for a stay of the administrative decision at issue herein is continued to January 25, 2023.

[1] The administrative hearing occurred over Zoom.

[2] Petitioner argues Exhibit Y revealed to the Hearing Board that Inspector Harris' testimony and the Dwyer perpetrated a fraud upon it. Petitioner concludes therefore the abatement order should not have been issued based on Inspector Harris’ testimony.

[3] Petitioner also cites Evidence Code section 771 as a basis to admit the exhibit. (Evid. Code, § 771, subd. (a) ["if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party . . . ."]) Nothing suggests Evidence Code section 771 overrides the attorney-client privilege.

[4] “In other legal contexts, the terms ‘written’ and ‘writing’ are given broader meanings. For example, the definition of ‘writing’ in the version of Evidence Code section 250 in effect when CEQA was amended to list the contents of the record of proceedings provided:

‘Writing’ means handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.”¹²

(Consolidated Irrigation Dist. v. Superior Court, supra, 205 Cal.App.4th at 717.)